July 23, 2013

Justice Dept. Told Not to Delay Aaron Swartz FOIA

A federal trial judge in Washington today urged the government to continue reviewing thousands of pages of documents that could be released in a public records lawsuit seeking information from the Secret Service about the Internet activist Aaron Swartz.

The high-profile suit hit a snag this month when the Massachusetts Institute of Technology and the digital library JSTOR filed requests to intervene to have a say in the scope of any information that is released to the public.

U.S. District Judge Colleen Kollar-Kotelly didn't immediately rule today on whether she will allow MIT, represented by a team from Wilmer Cutler Pickering Hale and Dorr, and JSTOR, represented by Debevoise & Plimpton, to intervene in the lawsuit. Wired reporter Kevin Poulsen filed the suit in April in U.S. District Court for the District of Columbia.

An assistant U.S. attorney, Peter Maier, said the government is prepared to release 131 pages of responsive documents. Maier said the department still has upwards of a 8,000 pages that need to be reviewed. The government will not meet an August 5 deadline to file a response to the lawsuit.

Kollar-Kotelly today expressed some concern about any potential slow-down in the processing of the documents about Swartz. "Can we do this quickly?" she asked at one point during a hearing.

Swartz committed suicide in January as computer crimes charges were pending against him in Boston federal district court. Prosecutors allege Swartz illegally downloaded millions of articles from JSTOR via MIT computers. Some critics have charged the prosecution lacked merit and that the potential punishment was too harsh.

The Justice Department, Maier insisted, would not delay its review of potentially relevant information. The government can't meet its August deadline to file an answer to the suit, he said, because of the newly discovered "substantial" volume of documents that might be responsive to the complaint. The suit was filed under the Freedom of Information Act.

Lawyers for MIT and JSTOR are seeking the ability to have some say in just how much information is released to the public through the lawsuit.

MIT's attorneys, Laura Hussain and Patrick Carome, a Wilmer partner, said they're concerned about, among other things, the security of the university's computer systems.
Kollar-Kotelly today asked attorneys for MIT and JSTOR to address certain issues that Poulsen's lawyer, David Sobel, raised in opposition to the proposed intervention.

The judge directed MIT and JSTOR, for instance, to assess the viability of a so-called "reverse FOIA," where a company or individual sues an agency to block the release of information, under the federal public records laws, to a third-party.

Kollar-Kotelly also wants the lawyers to tell her more about whether either group sought to designate any records, at the time the information was disclosed to the government, as confidential.

A lawyer for JSTOR, Jeremy Feigelson, a Debevoise litigation partner who leads the firm's privacy and data protection practice, told Kollar-Kotelly that the library provided information to the government via grand jury and trial subpoenas.